By : Arpit Pareek
Last week the Rajya Sabha passed a private member’s bill of historical importance which provides a comprehensive rights framework for transgender persons in India. This is a victory of staggering magnitude — not only was it voted in unanimously, it is also the first time in 46 years that a private member’s bill has been passed.
Out of two things this bill made history for first one is that it advocates about equality or to say positive discrimination towards transgender community, while the second one is its being a private members bill and being passed unanimously. We will touch upon the second aspect in our article in coming weeks and for this week let’s have a detailed review of this bill from the perspective of Transgender equality.
Before we go into details of this article a few things facts to signify its importance.
- 29 countries has legislations in place for rights of Transgender people.
- While the number of Transgender community in India is 4.5 Lakh according to government records, actual number is expected to be about 20-25 lakh.
- India has passed 14 private members’ bills (all before 1970), while Canada has passed a whopping 229 Private bills.
- While this bill was being discussed and voted upon in Rajya Sabha, representatives of the community were sitting in the gallery of the house with a hope of better future in their eyes. Which seems not to far-fetched now.
Provisions of the Bill: The bill articulates a range of substantive rights for the community. The Bill aims at formulation and implementation of a comprehensive national policy for the up-liftment of transgender community. There are strong provisions to prevent abuse and violence towards community. Some of the major highlights of this bill are as follows:
- A National Transgender Welfare Commission at the Centre and State level for the community.
- A special transgender court will be set up according the bill.
- Negative rights such as protection from torture and abuse are placed alongside positive obligations of the state, through the recognition of the rights to education and healthcare.
- Two per cent reservation in government jobs will be provided for the community.
- Bill prohibits discrimination against transgender in employment or at work place.
- It also makes provisions for pensions and unemployment allowances for members of the community.
Review of the Bill: MP Tiruchi Siva of DMK is to be commended for, first, introducing the bill and, second, pushing it through to the final vote. However, it must be noted that the drafting process was conducted without much consultation with the community itself and this is clear from the big gaps in the bill. There are crucial changes that must be incorporated in the law if it is to be made of any substance and practically useful.
- First, the law needs to provide for the recognition of legal identity. This has been a primary demand of the community, and was a guiding principle of the National Legal Services Authority (NALSA) judgement, which mandated gender recognition of persons transitioning within the male/ female as well as of individuals who wanted to be identified as third gender. The bill is silent on these demands. The bill should not only provide for it, but should also contain a procedure for legal recognition of gender change.
Bill should also takes on board the principle of self-identification. As far as possible, the decision to be recognized as a gender contrary to an individual’s biologically assigned one should rest with the person, not be subject to administrative impediments.
- Second, the law needs to engage more meaningfully with access to educational spaces. This is presented as a separate chapter in the bill, one that asks educational institutions to provide for inclusive education for transgender children as well as for adult education programs. However, it does not take into account one of the major barriers to accessing education — bullying and harassment.
It is essential for the education chapter to make provisions for anti-discrimination and anti-bullying cells to prevent dropouts. It is also crucial that the chapter ensures that school curriculum include transgender issues from the start. This must be accompanied by teacher sensitization. The bill also needs to expand its reference to “transgender children” to include “gender non-conforming children”. This expanded definition could then be used to include children who don’t identify or behave in the manner associated with their biological sex.
- Finally, the law needs to engage with sexual citizenship, both at the level of sexual rights and violence. With respect to the former, in NALSA, the Supreme Court noted that Section 377 of the IPC, though associated with specific sexual acts, targeted certain identities, including Hijras (A Indian Name of Transgender) specifically, and was used as an instrument of harassment and physical abuse against transgender persons. The law continues to be used as a tool of abuse and the only way to curb this is through a repeal of the section 377 and thus decriminalization of consensual sexual intercourse between adults irrespective of their gender.
As for the latter, cases of sexual assault against the transgender community are not currently prosecuted as rape under Section 375, which only recognizes women as victims. This does not take into account the reality of sexual violence against transgender individuals perpetrated both by state actors and private individuals. Recognizing this reality, the Justice Verma Committee had recommended amending the section to make it gender neutral with respect to the victim, asking for a provision where the perpetrator of sexual assault was male, but the victim could be of any gender. Amendments subsequently made to the IPC ignored this recommendation, but as the committee noted, it is a crucial step towards recognizing sexual assault on transgender persons.
These are only three of the more pressing points to be made. For this legislation to truly achieve its potential, Lok Sabha needs to proceed in a manner that is as consultative as possible. This is a historic moment for a “minuscule minority”. Let the government make it count.
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References: Various News Articles and Opinion Pieces from The Indian Express and The Hindu.